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What will happen at my preliminary hearing?

If you were indicted for allegedly committing a serious crime in New Jersey, you likely will have a preliminary hearing after entering your not guilty plea and before proceeding to trial. In fact, as FindLaw explains, the whole purpose of a preliminary hearing is to determine whether or not the state has sufficient evidence to try you.

Not every New Jersey criminal defendant gets a preliminary hearing. Only those cases filed in the New Jersey Superior Court include one as part of their standard procedures. These cases involve such serious crimes as the following:

  • Murder, manslaughter and involuntary manslaughter
  • Firearms and weapons crimes
  • Domestic violence including sexual assault
  • Arson
  • Robbery and burglary
  • Drug trafficking

Preliminary hearing procedure

You can think of your preliminary hearing as a trial before a trial. Its purpose is not to find you guilty or not guilty, but rather to determine if the prosecutor has enough evidence against you to proceed to trial. The judge makes this determination; a preliminary hearing has no jury.

At your preliminary hearing, the prosecutor will present evidence to the judge, usually by means of calling witnesses to describe and explain whatever documentary evidence the state has. Your attorney will cross-examine each witness, attempting to damage his or her credibility and/or the validity and sufficiency of the documentary evidence itself. Your attorney also may call witnesses of his or her own, but criminal defense attorneys usually choose not to do so. Why? Because a preliminary hearing deals only with the government’s evidence, nothing else.

Standard of proof

Unlike a trial where the prosecution must prove the defendant guilty beyond a reasonable doubt, at your preliminary hearing the prosecutor must prove only that (s)he has enough evidence to constitute probable cause for a jury to believe that you committed the crime(s) charged.

The prosecution “wins” the vast majority of preliminary hearings. However, if your attorney can show that the evidence against you is extremely weak, the defense will “win.” If this happens, the prosecutor likely will drop the charges against you and dismiss your case.

While this information should not be taken as legal advice, it can help you understand the preliminary hearing process and what to expect.

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